PRACTICE.-A PLEA STATING FACTS DISCLOSED BY THE COMPLAINT is unnecessary and improper. If the elements of damage, as claimed by the complaint itself, are not recoverable, the proper way to raise this objection is by motion to strike out, by objection to the evidence offered to prove damages, or by a request for proper instructions to the jury.

ATTACHMENT.-THE FRAUDULENT DISPOSITION OF HIS INDIVIDUAL PROPERTY BY A PARTNER is not a fraudulent disposition of the property of the partnership, and does not of itself constitute a ground for suing out an attachment against the partnership by one of its creditors. In an action by the partnership for wrongfully suing out the attachment against it, it is no defense that one of the partners fraudulently disposed of his individual property.

PARTNERSHIP-CONSENT OR RELEASE BY ONE PARTNER ONLY.-In an action for wrongfully suing out an attachment against a partnership, it is no defense that one of the partners assented to such attachment. The partnership cannot be deprived of the right to redress wrongs committed against it by an estoppel or release of one of its members.

PARTNERSHIP-ACTION, WHEN DEEMED TO BE IN BEHALF OF AND NOT OF ITS MEMBERS AS INDIVIDUALS.A complaint describing the plaintiffs as A, B, and C, late partners doing business under the name of A, B & Company, must be deemed to be for the enforcement of a partnership obligation, and not as in support of an action commenced by the members as individuals. ATTACHMENT BOND-JOINDER OF PARTIES.-All the obligees in an attachment bond must be joined as plaintiffs in the capacity in which they are named for the use of such as claimed to have been injured.

PRACTICE-VARIANCE.-If a complaint by three persons styling themselves as late partners seeks to recover upon an attachment bond, which it describes as being payable to the plaintiffs, and such bond, upon being offered in evidence, appears to have been in favor of the partnership and also in favor of the three members as individuals, there is a fatal variance, and the jury should be instructed to find for the defendants.

Action by Dan Munn, George Munn, and Tom Edwards, partners, against W. R. Painter and others, sureties on an attachment bond, in an action by J. S. Reeves and Co. against the plaintiffs in this action. After the attachment was levied, the property seized was replevied and taken into the possession of the plaintiffs in the present suit, who sold and converted it into money, and afterward paid such money toward the satisfaction of the judgment recovered against them in the attachment suit. Judgment for the plaintiffs. The questions involved sufficiently appear from the opinion of the court.

Sollie & Kirkland, for the appellants.

Borders & Carmichael and A. A. Evans, contra.

334 BRICKELL, C. J. This was an action on an attachment bond to recover damages for the breach thereof by wrong

ful suing out of the attachment. The original complaint and the second count of the amended complaint were withdrawn, and the trial was had on the first count of the amended complaint. In this count, which claims actual damages only, the only breach assigned is, "the said attachment was wrongfully sued out in this, because the said [plaintiffs] were not about fraudulently to dispose of their property as alleged in the affidavit in said attachment suit." The defendant demurred to this count on the grounds that it did not deny that the debt for which the attachment was sued out was due, and failed to aver that no ground existed for the suing out of the attachment, and the overruling of the demurrer is one of the errors assigned. One of the conditions of an attachment bond is, that the obligors shall pay to the defendant in the attachment all such damages as he may sustain by the wrongful or vexatious suing out of the attachment. In an action on such bond, the defendant is not confined in his defense to proof of the existence of the particular ground of attachment averred in the affidavit, but may show the existence of any statutory ground. If any such ground existed, the attachment was not wrongfully sued out, and there was consequently no breach of the bond in this respect, if there was a valid debt due from the defendant to the plaintiff: Gabel v. Hammerwell, 44 Ala. 336; Lockhart v. Woods, 38 Ala. 631. Hence, when only actual damages are sought, and the fact of the indebtedness is not denied, the complaint should, in some form, negative the existence of any statutory ground for the suing out of the attachment, since the bond is not broken unless the attachment was wrongfully sued out, and the nonexistence of the particular ground averred in the affidavit, or of any particular ground, does not render the attachment wrongful: Crofford v. Vassar, 95 Ala. 548; McLane v. McTighe, 89 Ala. 411. When exemplary damages are claimed the complaint, in addition to averring that the attachment was wrongfully sued out, must negative the sworn ground upon which the attachment issued, and aver that it was sued out without probable cause for believing the sworn ground to be true: City Nat. Bank v. Jeffries, 73 Ala. 183; Schloss v. Rovelsky, 107 Ala. 596. 835 But this averment is not necessary where only actual damages are claimed: McLane v. McTighe, 89 Ala. 411. An averment in the complaint that the attachment was wrongfully sued out, "because the said [plaintiffs] were not about fraudulently to dispose of their property as alleged in the affidavit," is equivalent only to an averment of the nonexistence

of the particular ground upon which the process issued. It is not equivalent to an averment that the attachment was wrongfully sued out, since other grounds may have existed, and if any other ground did exist the attachment was not wrongful. It does not, of consequence, show any breach of the bond. To require the defendant to take issue on such averment would deprive him of a legal defense-the existence of some other statutory ground for the suing out of the attachment. This being the only assignment of the breach, the complaint fails to show that there has been any breach of the bond, and the demurrer should have been sustained.

The complaint claimed as damages the value of the property seized under the writ, and the defendant pleaded in mitigation of damages that plaintiff had replevied the goods levied on, and had afterward sold them and applied the proceeds to the payment of the debt due defendant. There was a demurrer to this plea on the ground that these facts could not be considered in mitigation of damages, which demurrer was sustained. In Hundley v. Chadick, 109 Ala. 575, it was held, after a careful consideration of the question, that in an action on an attachment bond for the wrongful suing out of the attachment, the fact that the attached property, which had been taken from the defendant, and had not been replevied nor returned to him, brought its fair value when sold under the order of the court, and that the proceeds of its sale had been applied to the payment of the debt of the defendant, constituted no bar to the action, and was not matter in mitigation of damages. We adhere to this principle, and its enforcement is necessary in order to prevent the abuse of the process of attachment. If the plaintiff in the attachment proceedings be permitted to make this defense when sued on his bond, the restraints imposed by statute for the purpose of preventing an abuse of the process, would be useless. But when the defendant in the attachment suit replevies the 336 property, thereby retaining the possession and enjoyment of it, and himself sells it, in his own way and on his own terms, and with the proceeds pays the debt, the reason on which the principle rests ceases, and the principle becomes inapplicable. The replevy and sale of the property in such case is not the necessary result of the suing out of the attachment, but is the voluntary act of the defendant, done for his own convenience and benefit to prevent the injury which would result from a failure to replevy. He may or may not replevy, or, having replevied, may or may not sell the property, and pay the

debt, and the mere right to do so, which the statute grants him, and the contingency of his exercising the right, cannot lessen the influence upon a creditor of those statutes which require him to give bond for the payment of all such damages as may result from the abuse of the process. When property levied on by attachment is restored to the defendant without having been replevied, the damages recoverable include, not the value of the property, but the value of its use during the detention, together with such other actual damages as may be shown, and such, we believe, should be the rule when the defendant replevies the property and sells it. We are of the opinion that when property scized under a writ of attachment is replevied by the defendant, who afterward sells it, and with the proceeds pays the debt to enforce which the attachment was sued out, these facts may be pleaded in mitigation of damages in an action on the attachment bond. But, in the present case, all the facts averred in the plea were alleged in the complaint, and were, therefore, admitted facts upon which no issue could be taken, except to deny their truth, which was not the purpose of the plea. The plea, therefore, raised no issue and was unnecessary to enable the defendant to obtain advantage of the facts set forth therein. When an element of damages is claimed, which the complaint itself shows is not recoverable, the proper way to raise this objection is by a motion to strike, or by objection to evidence offered to prove the damages, or by request for proper instructions to the jury: Treadwell v. Tillis, 108 Ala. 262; Kennon v. Western Union Tel. Co., 92 Ala. 399. The sustaining of the demurrer was not an error of which appellant can complain.

337 Although each member of a partnership is, generally speaking, liable for all the debts of the firm, and the voluntary conveyance by one partner of his individual property may be fraudulent as to the partnership creditors, and, if fraudulent, will authorize such creditors to follow up and subject to the payment of their claims the property thus fraudulently conveyed, or to sue out an attachment against such partner, yet such fraudulent disposition of his individual property by one of the partners is not a fraudulent disposition of the partnership property, and does not, of itself, constitute a statutory ground for the suing out of an attachment against the partnership by a partnership creditor: Bates on Partnership, sec. 1117. In an action by a partnership, or by the members thereof as partners, on an attachment bond seeking damages only for the injuries

done by the wrongful seizure of the partnership property, it is no defense that one of the partners had fraudulently disposed of his individual property. For this reason charges A, B, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, and 16, requested by appellants, were properly refused.

There was evidence tending to show that one, at least, of the partners consented to the suing out of the attachment, and upon this evidence a charge was requested that, if the jury believed the evidence, they must find for the defendants. It is not contended that the consent of one partner to the suing out of an attachment against the partnership bound the partnership, but that, one of the partners having by his consent disabled himself to sue on the bond, there can be no recovery by the others, because all must recover, or none can. Although it is a principle of law that if two or more unite in bringing an action, all must recover or none can, and that if one has disabled himself to maintain the suit, this precludes the others from recovering, it has been expressly held by this court in Fancher v. Bibb Furnace Co., 80 Ala. 481, overruling a former decision to the contrary in Cochran v. Cunningham, 16 Ala. 448, 50 Am. Dec. 186, that this principle does not apply in a suit by a partnership, and that the partnership cannot thus be deprived of the right to collect its assets, or to redress wrongs committed against it, because of the estoppel against or remittitur by one of the partners.

In considering all the charges we have treated the 338 action as one instituted by the members of the partnership of Edwards & Munn Brothers, as partners, to redress a wrong done to the partnership, and not as a suit by them as individuals to recover for the wrong done to each individually, as counsel for appellants insist it should be treated. The plaintiffs are described in the caption of the original complaint as "Dan Munn, George Munn, and Tom Edwards, late partners, doing business under the firm name of Edwards & Munn Brothers," and the summons followed the complaint. The caption of the amended complaint, as it appears in the record, omitted the word "late," but was in other respects the same. This is a proper description of the plaintiffs in a suit by a partnership, or by the members thereof as partners, to recover partnership assets, and there is nothing in the body of the complaint to indicate that the plaintiffs sue as individuals. The bond sued on was made payable to Dan Munn, George Munn, Tom Edwards, and to Edwards & Munn Brothers. It was properly so made because in the com